Patrick J. Cunningham, chief of the Criminal Division of the U.S. Attorney’s Office in Arizona, is invoking his Fifth Amendment rights and declining to testify about Operation Fast and Furious in front of the House Committee on Oversight and Government Reform.

Fast and Furious is one of ten suspect “gunwalking” operations carried out by the Department of Justice — this operation armed the Sinaloa drug cartel with more than 2,000 weapons. Those firearms have been blamed in the deaths of at least 300 Mexican civilians, and two of those firearms were recovered at the scene of Border Patrol Agent Brian Terry’s murder in Peck Canyon, AZ.

Cunningham’s attorney Tobin Romero suggests his client is being scapegoated:

“Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly.”

…

Romero claims Cunningham did nothing wrong and acted in good faith, but the Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious.

“To avoid needless preparation by the Committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself.” Romero told [Congressman Darrell] Issa.

This schism is the first big break in what has been a unified front in the government’s defense of itself in the gun-running scandal. Cunningham claims he is a victim of a conflict between two branches of government and will not be compelled to be a witnesses against himself, and make a statement that could be later used by a grand jury or special prosecutor to indict him on criminal charges.

Romero’s letter to the Oversight Committee points out that the gunwalking plot began in 2009, and notes that Cunningham did not join the U.S. Attorney’s Office in Arizona until months later, in 2010. Romero’s insistence that his client could not have been involved in the creation and approval of Fast and Furious seems like an airtight alibi. However, what he knew after he became chief of the Criminal Division of the U.S. Attorney’s Office in Arizona — and chose not to act upon — could indeed lead to administrative action or criminal charges.

Cunningham’s intention to broadly exercise his rights by providing nothing more than his name and title provoked a scathing response from Oversight Committee Chairman Darrell Issa:

The assertion of the Fifth Amendment by a senior Justice official is a significant indictment of the Department’s integrity in Operation Fast and Furious. The former head of the ATF has previously told the committee that the Justice Department is managing its response to Operation Fast and Furious in a manner designed to protect its political appointees. This is the first time anyone has asserted their Fifth Amendment right in this investigation and heightens concerns that the Justice Department’s motivation for refusing to hand over subpoenaed materials is a desire to shield responsible officials from criminal charges and other embarrassment.

Coming a year after revelations about reckless conduct in Operation Fast and Furious were first brought to light, the assertion of the Fifth Amendment also raises questions about whether President Obama and Attorney General Holder have made a serious and adequate response to allegations raised by whistleblowers. Did Attorney General Holder really not know a senior Justice Department official fears criminal prosecution or is this just another example of him hiding important facts? The committee will continue to demand answers.

Cunningham’s defense seeks to portray him as an innocent man caught in a conflict between the legislative and executive branches of government. He also seems to be the designated “fall guy” in the Obama administration’s recent tactical shift.

Previously, administration officials claimed they were unaware of the gunwalking plot and had no involvement in it. That excuse fell apart when evidence was presented that Deputy Attorney General Gary Grindler, Deputy Attorney General David W. Ogden, Assistant Attorney General Lanny Breuer, Assistant Attorney General Ronald Weich, ATF Director Kenneth E. Melson, Drug Enforcement Administration (DEA) Administrator Michele Leonhart, Federal Bureau of Investigation (FBI) Director Robert Mueller, U.S. Attorney for the District of Minnesota/Chair of the Attorney General’s Advisory Committee/Acting ATF Director B. Todd Jones, and the top federal prosecutors in the Southwestern border states were all privy to information about Operation Fast and Furious.

The administration has since shifted to what can only be described as an “incompetence defense,” where they are asserting that rogue Phoenix operatives initiated the massive gunwalking plot without their supervisors in Washington, D.C., knowing anything about it — even as the “rogue” agents worked across directorships with DOJ, DHS, the IRS, and the required authorization of the State Department.

Attorney General Eric Holder’s defense seems to hinge upon the theory that he’s a detached boss more interested in pursuing heavily politicized racial justice schemes than enforcing the law or knowing what his direct reports are engaged in. One has to wonder about how serious the criminal crimes are that the attorney general is attempting to avoid by claiming gross incompetence.

It will be interesting to see if an immunity arrangement can be worked out for Mr. Cunningham so that he can share what he knows about Operation Fast and Furious.

74 Comments, 36 Threads

“Recall that invoking the Fifth Amendment is only allowed to avoid self-incrimination.”

Really?
Let me see:
“Amendment V

No person shall . . . nor shall be compelled in any criminal case to be a witness against himself, . . .”

I see nothing about self-incrimination there, merely a blanket declaration regarding being a witness against yourself.
Indeed it has a clear purpose in cases like this where two conflicting accounts have already been presented, and anything he says can be used as “proof” that he is “lying” while contradicting the testimon of one of them. As should be well known, lying about an investigation is a crime in and of itself, even if the person is not guilty of the original charge.

You do not have to like that he is choosing to invoke his rights, but declaring that “proof” of guilt is hardly showing respect for the Constitution and the principles of inalienable rights and justice it represents.

Right you are. But that then begs a second issue. When he joined the DOJ, he swore to uphold the law. If he’s now in possession of information re criminal wrongdoing on the part of others in the department, and he says nothing about it but instead seeks only to keep himself from prosecution, then his invoking the Fifth is itself, on one one hand, a kind of admission of guilt, and on the other hand a contemptible failure to satisfy his oath.

I’d say it begs a third issue – why it is that the Justice Department acts as though the U.S. Constitution is a defunct, non-binding document when it comes to protecting the rights of common citizens, but as a sacred covenant when it comes to protecting one of their own?

I am merely noting that it is inappropriate to seek to subvert one of the foundations of our system of jurisprudence, a right explicitly declared in our Constitution, when prosecuting a complaint for . . . subverting our Constitution.

I see nothing about self-incrimination there, merely a blanket declaration regarding being a witness against yourself.
”
Really? What is it that “witness against yourself” and “self-incrimination” do NOT have in common? Is it your assertion that we have a right to “pursue” a dream, but not “chase” a dream, because the right to “purse happiness” says nothing about chasing.

Who’s being moronic here? It’s easy to use facts to build a narrative that isn’t necessarily true. supplying the facts from your own mouth would in essence be testifying against yourself, if the questioner’s objective is to convict you. Doesn’t mean you’re guilty.

Irrelevant.
Others have already noted cases where an individual has merely contradicted what another witness said and been charged.
Quoting from Ohio v. Reiner that I linked to:

To the contrary, we have emphasized that one of the Fifth Amendment’s “basic functions … is to protect innocent men … ‘who otherwise might be ensnared by ambiguous circumstances.’ ” Grunewald v. United States, 353 U.S. 391, 421 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U.S. 551, 557—558 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth. 353 U.S., at 421—422.

That’s splitting hairs. The purpose of the 5th amend. is to protect person from being a witness in a prosecution against himself. Once it’s clear that the witness is no longer participating in a prosecution of himself (immunity), he is then a witness for the court for the purpose of prosecuting someone else, he can be compelled to testify. No person is allowed to use the 5th amend. to avoid testifying against someone else.

Indeed it has a clear purpose in cases like this where two conflicting accounts have already been presented, and anything he says can be used as “proof” that he is “lying”

I’m not sure what you’re trying to say there. The only case in which the two conflicting accounts can be used as proof that he was lying is if the two conflicting accounts are both his, and both sworn under oath.

It is most emphatically NOT the case that anything he says can be used as proof that he is lying, and your erection of that strawman suggests desperation on your part.

We are seeing a lot of hair splitting on “testifying against oneself” and “self incrimination”. The truth is that someone much higher in the food chain is responsible for this mess, a political appointee is likely. What we need most to know is how high this goes, was it Holder or some one below him?
It would seem obvious that granting this man immunity and forcing him to testify would be useful, at least without more knowledge from other sources. Should rep Issa find it useful, I believe we will see this guy getting immunity. Issa will probably play out other avenues first, to confirm the best route to the truth.
It seems doubtful this will be resolved quickly, but when it is…wow!

For the non-lawyers out there (and apparently that includes an awful lot of progressives and government supporters) ‘being a witness against yourself’ IS Self-Incrimination by definition. As to whether it is proof of guilt, that is debatable, but it clearly is not proof of innocence and since this is not a criminal case and he is not charged with any crime, it certainly gives the APPEARANCE of guilty knowledge on this witness’ behalf. By the way, all the Issa people have to do is offer him immunity for his testimony and he will no longer be able to ‘assert his rights’

“Operation Gunrunner” was begun in 2006 as a Bush DoJ action. It was so pathetic that the DoJ handlers nicknamed it “Operation Gunwalker”. When BHO and Holder seized power the name was changed to “F & F” and ramped up. In addition “Operation Castaway” was added out of Tampa to arm other Central American gang memgers. This is a by-partician effort to destroy the 2nd amendment and will be a by-partician effort to cover up. We have been lied to about almost everything by a pending psy-ops police state. The federal government is a totally owned subsidiary of the privately held Federal Reserve and doing the monopolists dirty work.

“…hardly showing respect for the Constitution and the principles of inalienable rights and justice it represents.”
What Constitution? You’ve got the wrong century, Sam:http://www.youtube.com/watch?v=APUhVXImUhc

“even as the “rogue” agents worked across directorships with DOJ, DHS, the IRS, and the required authorization of the State Department.”

Bureaucrats are most interested in preserving their own jobs. Which I do not fault them for. But you are not going to get such mass cross agency and cross department cooperation without orders from higher up, in the political circle. And those folks aren’t going to do something like this without cooperation among the cabinet secretaries. And they aren’t going to be cooking up a scheme like this without the authorization from their boss.

I’m not a lawyer, but gross incompetence or negligence can also be a crime, especially when deaths are involved, besides upping the price of poker in civil damages and liability. I bet he’s trolling for some use immunity, and his higher ups are sweating and shredding. Of course, that immunity probably won’t help with the Mexican authorities, if they want their pound of flesh.

It would be a BIG mistake to work out an immunity deal before having him come before Issa’s committee. He should be brought forward and asked hours of questions so that the public can see video of a DOJ official refusing to allow Congressional oversight by invoking his Fifth Amendment rights. Only after hours of video has been captured for use in the election commercials should the thought of an immunity deal move forward. I’m sure there could be some creative questions asked since they aren’t expecting answers.

No. It is inappropriate for the committee to relentlessly interrogate a witness who has taken the 5th merely to gather video for political purposes. Bring him in ask the questions, let him answer or fall back on his constitutional protections. Then have the backdoor discussions about what “might turn up” if the witness is granted immunity. If there is good reason to so do. Grant immunity and bring him in and ask again. At that point you either get answer or you toss him jail until you do.

Amen!
Optics, optics, optics. Stop thinking that the American people do any thinking at all. If they did, how the hell did Obumbly git hisself elected?
Let that mook sit in his chair and, over and over, assert the Fifth. Then let the Nightly News ignore THAT!
This game is for keeps. We better start playing that way.

The Fifth Amendment is to protect the individual from SELF incrimination. There are scores of questions about the operation itself not involving him directly that could be asked I’m sure. “How many agents were budgeted to oversee the Fast and Furious program?” Or, “Does your wife believe in open marriage?” BWAhahahahahaha We’re talking about the government running guns to armed criminals on our borders and you want to “play nice”? You are a BIG part of the problem.

The entire problem is people who are willing to treat the Constitution like the Pirate Code – as guidelines rather than actual rules.

If you are willing to trash the Constitution and our justice system in order to play politics then you are just as bad as Obama and Holder, and “winning” with such methods is just another way of losing as there will be nothing left of the Constitution to uphold when the dust settles.

The Fifth Amendment privilege protects not just the guilty, but also the innocent, who fear that even their entirely truthful responses might provide the government with incriminating evidence from their own mouths. (Ohio v. Reiner, 532 U.S. 17 (2001) (dictum).)

“The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” (Slochower v. Bd. of Higher Ed. of the City of New York, 350 U.S. 551, 557-58 (1956).) Link

Then I guess we should just stop having hearings, and let Holder and OBooby run amok. You wouldn’t want to actually cause some bureaucrat to lose his job over incompetence, do you? Imagine the precedent. Washington would be a ghost town within a fortnight.
Remember, you’re late one day filing your taxes, and they will slap you around until you bleed. I have absolutely no mercy for these scum.

The Fifth Amendment privilege protects not just the guilty, but also the innocent, who fear that even their entirely truthful responses might provide the government with incriminating evidence from their own mouths. (Ohio v. Reiner, 532 U.S. 17 (2001) (dictum).)

That’s not inconsistent with “invoking the Fifth Amendment is only allowed to avoid self-incrimination”.

Actually it is, that part about being innocent and all.
By definition you would expect the innocent cannot incriminate themselves.

If a declaration of innocence can be used as an admission of guilt then it must be recognized that the right to remain silent goes above and beyond merely avoid self-incrimination to actively forestalling any charges in the first place.

Particularly when phrased in the manner used in this article, saying the Fifth Amendment only protects against self-incrimination is declaring that it only protects you from having to confess which is saying that invoking it is a de facto admission of guilt.
That is not true, and indeed fundamentally the opposite of what was intended.

So it has been established that gunwalker supplied weapons were used in the deaths of 300+ people in Mexico? If I recall Mexico has an extradiction treaty with the U.S. I wonder how the administration would react if Mexico were to issue warrants for those in charge like this guy, Holder, even Obama?

So it has bee established that gunwalker weapons were used in the deaths of 300 people in Mexico? Doesn’t Mexico have an extradiction treaty with America? I wonder what the administration would do if Mexico issued warrants for this guy and others involved (Holder, et al.)?

The next administration ought to offer Mexico a deal, we send them everyone connected with Gunwalker and they can do with them as they please with our blessings. In fact we ought to encourage the worst possible treatment, up to an including torture. I want revenge for what this administration has done.

The interesting thing to me is that the letter from his lawyer to Issa suggests that (i) the DOJ is blaming Cunningham for providing “inaccurate information” that the DOJ used in its initial response; and (ii) that Cunningham’s lawyer claims that Cunningham provided a detailed draft response vetted for accuracy to the DOJ and the DOJ chose not to use it in its initial response to Congress.

Although pleading the 5th does not mean one is quilty, it certainly suggests a very serious concern on the part of Cunningham, a federal prosecutor, and his lawyers.

I’m not saying there is fire here, but the amount of smoke is increasing.

No matter how you slice it, he should now resign. Either he committed a criminal offense of he thinks his superiors are trying to pin one on him. Either way, he has no business continuing to work for the DOJ.

Doesn’t matter what Issa offers. The coverup is underway, with a “DoJ IG investigation into possible crimes.” Issa can’t immunize against them, and Cunningham can say that because he can’t, the 5th is still needed.

The US government has been smuggling weapons and drugs to various supported causes for hundreds of years. This is not news, every government since recorded history has supported causes by smuggling and other illegal means.

There have been thousands of people killed in these schemes the last few decades, gunwalker is one small piece of this.
Another problem is Money laundering. Gunwalker investigations will bring unwanted attention on hundreds of billions (Annually) laundered through Chicago Comex, NYSE, Miami offshore bank system, and agencies in Washington DC.
If Gunwalker were to be investigated thoroughly it would lead to massive laundering far exceeding what Wells Fargo and Wachovia were involved in these last few years;

If we let the Chips fall where they may, we would arrest Ex and sitting Presidents, members of Congress and Senate, hundreds of sitting and retired CIA, FBI, DEA, DHS, employees, Banking Officers and officials involved in money laundering, weapons and drug smuggling, and murder.
The problem is partisan politics will not allow chips to fall as they may.

alex, I have to differ with you on this. The supplying of guns to our allies and those cooperating with us on national security issues has nothing to do with this issue. This issue is supplying guns to known criminals in order to try to pin a false rap on U.S. gun dealers so the current regime in DC could make effective propaganda. The propaganda story line would be this: See people, the guns being used by Mexican criminals come from American gun dealers. We need more stringent laws and regulations in the U.S. to clamp down on gun ownership and sales.

This is not check mate, but this move, by a high level DoJ Prosecutor, leaves only a few more options available to the King. What has been taken off the board is the continuous assertion by Congressman Elijah E. Cummings, the senior Democrat on the Committee, that it is simply vile political theater, without substance. In an election year, with the very real possibility of a completely different DoJ management next year, what will be this American’s future position? ATF whistle blowers, Arizona state officials, the Mexican government, and now a top DoJ official, are screaming crime! The plausible,”mistakes were made”, “I did not read my mail”, “we must reorganize”, after a year, are no longer believable options. Some one, or ones, at the highest level of government clearly have committed felonies, worthy of serious jail time. This is worse than Watergate, innocents lie in graves. These are brilliant lawyers; they know the remaining moves. Who will fall on their sword for the boss? Some one will break, save their hide. The options narrow. Let the wheels of justice continue to grind finer and finer.

Our nation must know who, and why, even with great sadness? Or lose our way, a nation of laws.

i have been watching a lot of crime t.v.lately, so you can be sure i don’t know chit about his options. however, i did find this reference on the net (lost the site somehow) about federal ee’s taking the 5th.

FOUR NEW STEPS

The rule that emerges from Modrowski is: When a federal employee is being
investigated for work-related activity that could give rise to criminal
charges, the employee must receive a specific and comprehensive grant of
immunity before he can be forced to cooperate in that investigation or be
fired for failure to cooperate. The following steps should ensure that the
immunity grant is clear, and that future steps are constitutional:
Get the immunity grant in writing from the U.S. attorney’s office on Justice
Department letterhead.
Give the employee a specific warning about what the grant of immunity
covers.Explain the ramifications of failing to cooperate.
If the employee is not represented by counsel at the time the warning is
given, and if he asks for a short amount of time to consult with an
attorney, honor the request. The request for an attorney cannot be used
against the employee to support removal for failure to cooperate. Follow up
by contacting the employee after the date of the appointment with the
attorney, and set up a meeting with or without the attorney present to
obtain the cooperation of the employee in the investigation. (The attorney
has no right to be present.)
When other potential criminal charges are still active and there is a
possibility, however slight, that the information to be given by the
employee could be incriminating on the charges for which immunity has not
been granted, if the employee asks to consult with an attorney before
answering questions, he must be allowed to do so. These four steps should
enable administrative investigators to act lawfully, but how Modrowski plays
out in the Merit Systems Protection Board is, of course, a matter of
conjecture.

if i was caught between other powerful people’s political agenda and accessory to mass murder, and know what we know about who this crowd is, i would take a deal, today. the 1st one to take the deal on t.v. almost always goes free.

also, i would not dor one minute trust the bad really guys to NOT take a deal. they are always after mr. BIG on the t.v.shows. they always offer deals to just about anybody else.

Immunize him. There’s the risk that a fix is in, where he has agreed with his “masters” to hold out for immunity and then take the fall for the entire bunch, leaving the prosecution with an empty sack. But what would there be in it for him? There would have to be a whole lot of dollars to compensate for a career voluntarily flushed. Dollars leave a trail that is seldom untraceable, and if it were ever found that he took the fall for a pay off, his immunity wouldn’t be worth much. No. I think he’s signalling that what he knows is a big deal. Immunize him.

Cunningham is skirting around the edge of contempt for legality. The Congress should grant him Amnesty for himself, and if he still refused to testify he could be held in contemp and as a result tried abd removed from his position, This by the way is the same tactic that should be used on Holder a man not fit to hold the office of Attorney General.

I’m in favor of offering immunity to Cunningham, AFTER he is fired from his job. The carrot cannot be to maintain his job as if nothing has happened, but rather, to avoid the possibiity of a felony conviction and prison time.

It is by now a reasonable suspicion that this gun running operation was
cooked up by Obama and Holder for the joint purposes of a) pushing more gun bans and b) inciting riots by La Raza and c) maybe catching a dope dealer. That said, I have some problems with this article:

1) “is only allowed”: That is crap. Keeping your mouth shut when you’re embroiled in political intrigue is a good idea, especially if you are innocent. I have no cotton for this “justice” crook, but if you revere the constitution to keep you free then you need also revere it now. That’s how it works.

2) “firearms have been blamed”: Who ARE you guys, anyway? This is the same demagogic anthropomorphism that the fascists employ when conjuring evil spirits to incite the bimbo class and infringe your 2nd amendment right. Murderous Mexican gangs, aided and abetted by the Obama administration and a bunch of corrupt Mexicans, are what killed all those people. Say so!

3) “cartels”: Please STOP parroting that communist propaganda euphemism! Members of a cartel, like OPEC, collude to limit production and fix prices. By contrast, the organización de narcotraficantes are paramilitary hordes who kill each other every day while directly competing for turf. That the Mexican government wants to pawn off the horror and disgrace of its monumentally corrupt drug prohibition as a free market failure is detestable cowardice. How can you people claim to be pro-market and still promote such an insidious PC lie?

Back to Cunningham, who knows what information the oversight committee has on these guys and who they can pressure best? Since he apparently came onto the scene late, I don’t see how Cunningham could take the big fall after a grant of immunity.

Ain’t it funny, though? How the administration will never label this mass murderous multinational conspiracy involving extra-governmental armies “terrorism”? If they did it would make that whole 5th amendment problem just quietly…

at best F&F is a fantastic example of YET another govt beuocracy and ineptitude, which proves AGAIn why the govts power should ver extreamly limited according to the constitution,. At worst it is yet ANOTHER example of beuracratic and govt abuse going to the highest levels to establish an anti 2nd amendment anti american agenda and further curtail the rights of the people. in which case the conclusion remains the same. Dem and rep have lost meaning. it now boiles down to who do you want to control your life, you or the govt.

People refusing to answer questions that would pose an embarrassment to an ever more embarrassing administration – lying leaders who find ‘truths’ a difficult area to get their tongues around – suspects in major crimes who won’t cooperate with police by having open discussions with authorities!
‘Oh what to do’?
Simple – ‘Water-board around!’
Think of it as a face cleaning project for the Obama / Holder Justice Department.

I have known Pat Cunningham for approximately 20 years, and he is a man of integrity. It will shock me if it turns out that he is guilty of these charges, and to successfully make Pat the fall guy would be to take down one of Arizona’s best.

Fast and Furious began in 2009, per whistle blowers. If that’s true, then F & F could not have been Cunningham’s initiative, since he was sworn in as the Phoenix Criminal Division Chief in Jan. 2010. Therefore, he is not the “big fish” and cannot take the fall by himself. Issa needs to give him immunity and right away, before he gets sent overseas on “assignment”.

The Justice Department’s responses to F&F accusations all have the smell of a “Hey, don’t look at me…I just work here.” attitude.

Of course they can’t actually say that–they have to come up with a more intelligently sounding statement. I’m familiar with that kind of attitude. It happens when someone at the top sees the actions taken as the solution to their problem but none of the mercenaries doing the work are motivated by a philosophical buy-in.

Like maybe if Obama didn’t like the flimsy evidence supporting his assertion that Mexican drug weapons and violence were all the result of US laws protecting the manufacture and selling of guns–so he ordered his Justice Department to create evidence for his case.

You all have a lot to say about the facts, the law….etc… But for those of you who know Patrick J. Cunningham as a friend, have worked for or with him – say something about his character! He has always been one of the good guys and you know it and have all witnessed it. Ask yourself if he’s being thrown under the bus without quoting case law. Or ask yourself what you would have done different.